The bench presided by Chief Justice of India Surya Kant and also comprising Justice V Mohana said this in the context of the March 2022 ruling of Karnataka High Court that a husband, who forces non-consensual sex on his wife, can be prosecuted under the relevant penal provision.Hearing petitions challenging the marital rape exclusion in the country’s penal law, the Supreme Court on Wednesday said that while a marriage does not result in extinction of individual autonomy, the question is whether a husband can be prosecuted for non-consensual sex without first deciding the constitutional validity of the exception.The court said it will start the final hearing on the petitions after three weeks and asked the parties to submit their papers in the meanwhile.“Where there is a clear definition and an exception under Section 375, the issue is about the remit of that exception…One is the safety and security of married women…We fully appreciate the submission that there is no question of marriage resulting in a union of individual autonomy. Point well taken. Now see the law as it stands. It is a penal law. And therefore, rightly or wrongly, before a constitutional court renders a verdict that the exception was unreasonable or manifestly arbitrary, can we permit a prosecution on that score?,” said Justice Joymalya Bagchi, who was part of a three-judge bench hearing a clutch of petitions challenging the exception.The bench presided by Chief Justice of India Surya Kant and also comprising Justice V Mohana said this in the context of the March 2022 ruling of Karnataka High Court that a husband, who forces non-consensual sex on his wife, can be prosecuted under the relevant penal provision.Justice Bagchi said, “Till we take a call on the constitutional vires of the exception, can a prosecution be permitted? We will definitely protect the victims but is it within the domain of a prosecutor to prosecute a person where there is a clear definition of an exception in S. 375 IPC (or section 63 Bhartiya Nyaya Sanhita)?”Besides the appeal challenging the Karnataka High Court decision, the bench is also seized of an appeal challenging the 2022 split verdict delivered by the Delhi High Court in the matter, PILs against the exception and applications by some intervenors.The bench said it will consider whether a prosecution can be sustained if the exception survives, and also if the exception itself is constitutionally valid.Story continues below this ad“We will answer both questions. One, suppose the provision is sustained, despite that, whether it constitutes an offence. And, their direct challenge is to the provision itself, that it is not liable to be sustained,” said the CJI.Backing the prosecution of the husband in the Karnataka case, Senior Advocate Indira Jaising said she will delve into how it is possible despite the exception clause.Senior Advocate Karuna Nundy, contended that criminalising non-consensual sex within marriages will not amount to creation of a new offence. “There is no new creation of offence here,” she said, adding that the offence already exists with a certain class of people exempt. “The offence is not changing”.Justice Bagchi, however, did not agree, saying “one cannot see the Constitution in silos. When it comes to the right under Article 21, it equally impacts the right under Article 20. In penal laws, we have to factor in questions of mens rea, culpability and the way we interpret the Constitution, so that we do not spring surprises upon our citizens”.Story continues below this adThe judge also pointed out that notwithstanding the exception clause, violent acts like grievous injury or culpable homicide remains covered by other penal provisions.CJI Kant sought to know whether a husband can be prosecuted for committing unnatural sex as defined in Section 377 IPC upon his wife.Solicitor General Tushar Mehta appearing for the Centre said it cannot be done and pointed out that it will be for Parliament, and not the judiciary to decide what is “natural” or “unnatural”.In an affidavit filed in the matter in October 2022, the Centre while opposing criminalising non-consensual sex within marriages had said that while “a husband certainly does not have any fundamental right to violate the consent of the wife, however, attracting the crime in the nature ‘rape’ as recognised in India to the institution of marriage can be arguably considered to be excessively harsh and therefore, disproportionate”. It pointed out that the court “has further adopted a balancing approach in order to reconcile in the perceivable engagement between fundamental rights”.Story continues below this adThe Centre said that “a woman’s consent is not obliterated by marriage, and its violation should result in penal consequences. However, the consequences of such violations within marriage differ from those outside it. Parliament has provided different remedies, including criminal law provisions, to protect consent within marriage. Sections 354, 354A, 354B, 498A IPC, and the Protection of Women from Domestic Violence Act, 2005, ensure serious penal consequences for such violations.”